Enter your email to subscribe:

Lynne Stewart, the criminal defense and activist attorney, was re-sentenced today in New York pursuant to the Second Circuit decision, US. v. Stewart, 590 F. 3d 93 (2nd Cir. 2009) disapproving her original 28 month sentence and remanding for resentencing. The new sentence is for a period of ten years. Prosecutors sought fifteen to twenty years for Stewart, aged 70.

The interest of Stewart's case for ConLawProfs was expressed in an Op-Ed in LA Times:

But Stewart's plight has larger implications for us all: It is a
bellwether of the increasingly stringent secrecy and security measures
imposed in federal courts, particularly in terrorism trials — all part
of the systemic erosion of due process that reformers expected would end
with the election of Barack Obama but which has been only further institutionalized.
Stewart's case has come to symbolize the increasing difficulty attorneys
face in zealously advocating for politically unpopular clients — a
necessary component of due process in an adversary legal system.

TrackBack URL for this entry:$MTTrans>

Comments

I wish she had jumped bail and gone to Cuba.

Posted by: Gloco | Jul 15, 2010 5:02:10 PM

Stewart was convicted by her own actions and her own words. Her cavalier comments are a clear indication of a lack of remorse, her contempt for the US, the court system and the probable likelyhood that upon relase, she would remain a threat to the safety and security of the people of the United States. It's a simple case of due process. Had she kept her fat mouth shut, she would have been released in 28 months.

Posted by: Locaste | Jul 16, 2010 2:43:59 AM

My Attorney Stephen Somerstein was co-council in the Blind Sheik/World Trade center case. He told me her violation of the court rules is a minor one and usually resulted in a small sanction. The reason they even knew about the tapes of the Koran that she passed on was with illegal wire taps. The law [patriot act] was past with a provision that previous taps done without a legal warrant were admissible.

The question was not whether Lynn Stewart violated the law, but whether the law violated the Sheik's constitutional rights. Can you imagine being charge with a crime and having no way to contact anyone to organize your defense?

This is a different country then described in the constitution.

Posted by: kai landow | Jul 17, 2010 5:34:01 AM

Ruthann Robson seems to sympathize with the LA Times' claim that Ms. Stewart's conviction "has larger implications for us all" because it reflects "the systemic erosion of due process." In fact, Ms. Stewart systematically (and perjuriously) breached her legal obligation to adhere to the administrative restrictions on Sheikh Rahman's communications with his coconspirators in furtherance of an ongoing terrorist plot. It seems plain that Ms. Stewart was, at best, entirely indifferent to possibility that people would die because of her breach of her own legal obligation to comply with the restrictions on Sheikh Rahman, an obgligation which she repeatedly acknowledged under penalty of perjury. Ms. Stewart evidently regarded the legal restrictions on Sheikh Rahman and his lawyers as unjust, but I thought we took it as given that the rule of law prohibits individual lawyers from deciding to breach legal obligations because of their disagreement with those obligations. A lawyer is entitled to advocate for a change in the law; but not to break the law. Indeed, I had thought that this concern was at the core of the objections of many (including myself) to the legal work of John Yoo and others in the Office of Legal Counsel during the Bush Administration. I do not understand why Ms. Stewart's decision to ignore her own legal obligations in the service of what she regarded as a greater good should be regarded any differently.

I have pasted in below a lightly edited version of the statement of facts in the Second Circuit's opinion. Not a single judge on that court -- even when the case was before it on en banc review -- regarded Ms. Stewart's conviction and sentence as raising any nonfrivolous issue of due process. In fact, the en banc court unanimously agreed that Ms. Stewart's original sentence was too light. The only disagreement was on how much that sentence should be enhanced on remand.

Larry Rosenthal
Chapman University School of Law

In October 1995, Sheikh Omar Ahmad Ali Abdel Rahman was convicted of a variety of terrorism-related crimes in the United States District Court for the Southern District of New York. According to the government's evidence at his trial, "Abdel Rahman, a blind Islamic scholar and cleric, was the leader of [a] seditious conspiracy, the purpose of which was “ jihad,” in the sense of a struggle against the enemies of Islam. Indicative of this purpose, in a speech to his followers Abdel Rahman instructed that they were to “do jihad with the sword, with the cannon, with the grenades, with the missile ... against God's enemies.” Abdel Rahman's role in the conspiracy was generally limited to overall supervision and direction of the membership, as he made efforts to remain a level above the details of individual operations. However, as a cleric and the group's leader, Abdel Rahman was entitled to dispense fatwas, religious opinions on the holiness of an act, to members of the group sanctioning proposed courses of conduct and advising them whether the acts would be in furtherance of jihad."

The crimes of conviction included soliciting the murder of Egyptian President Hosni Mubarak while he was visiting New York City; attacking American military installations; conspiring to murder President Mubarak; conspiring to bomb the World Trade Center in 1993, which succeeded; conspiring subsequently to bomb various structures in New York City, including bridges, tunnels, and the federal building containing the New York office of the Federal Bureau of Investigation (“FBI”), which did not succeed; and conspiring to commit crimes of sedition. For these crimes, Abdel Rahman was sentenced to be incarcerated for the remainder of his life. Following his conviction and appeal therefrom, Abdel Rahman's legal team focused on two goals: improving his conditions of confinement, and obtaining his transfer from prison in the United States to Egypt.

The government asserts that Abdel Rahman was linked to various other acts of violence: He is said to be, or to have been, a spiritual leader of what the indictment in the instant prosecution refers to as “ ‘al-Gama'a al-Islamiyya,’ a/k/a ‘al-Gama'at,’ a/k/a ‘Islamic Gama'at,’ a/k/a ‘Egyptian al-Gama'at al-Islamiyya’ ” (hereinafter, “al-Gama'a”), also referred to by the district court and the parties in English as the “Islamic Group” or “IG.” See Superseding Indictment ¶ 8. Al-Gama'a was designated a foreign terrorist organization (“FTO”) by the United States Secretary of State in 1997 pursuant to 8 U.S.C. § 1189, see Notices, Designation of Foreign Terrorist Organizations, Department of State, Office of the Coordinator for Counterterrorism, 62 Fed.Reg. 52650 (Oct. 8, 1997), was redesignated an FTO in 1999 and 2001, see Notices, Designation of Foreign Terrorist Organizations, Department of State, Office of the Coordinator for Counterterrorism, 64 Fed.Reg. 55112 (Oct. 8, 1999); Notices, Redesignation of Foreign Terrorist Organization, Department of State, Office of the Coordinator for Counterterrorism, 66 Fed.Reg. 51088 (Oct. 5, 2001), and remains so designated today, see *102 Foreign Terrorist Organizations, Fact Sheet, Department of State, Office of the Coordinator for Counterterrorism (Apr. 8, 2008), available at http:// www. state. gov/ s/ ct/ rls/ fs/ 08/ 103392. htm (last visited Mar. 28, 2009).

“Federal regulations provide that the Bureau of Prisons may implement SAMs, ‘[u]pon direction of the Attorney General,’ when ‘reasonably necessary to protect persons against the risk of death or serious bodily injury.’ 28 C.F.R. § 501.3(a).” In re Basciano, 542 F.3d 950, 954 (2d Cir.2008) (alteration in original), cert. denied, --- U.S. ----, 129 S.Ct. 1401, 173 L.Ed.2d 596 (2009). The Bureau of Prisons, following Abdel Rahman's remand to its custody in August 1997, imposed severely restrictive SAMs upon him. They were designed to prevent him from directing or facilitating yet more violent acts of terrorism from his prison cell. The SAMs have been renewed, and sometimes modified, every 120 days since they were first imposed.

The May 11, 1998, SAMs applicable to Abdel Rahman “prohibited [him] from having contact with ... others (except as noted in this document) that could foreseeably result in [his] communicating information (sending or receiving) that could circumvent the SAM intent of significantly limiting [his] ability to communicate (send or receive) terrorist information.” SAMs of May 11, 1998, ¶ 3. To enforce this general prohibition, the measures regulated Abdel Rahman's telephone contacts, id. ¶ 4, his mail, id. ¶ 5, and his visitors' visits, id. ¶ 6. The measures limited his telephone contacts solely to his attorneys of record and his wife, id. ¶ 4(a), and prevented matters discussed in those calls from being “divulged in any manner to any third party,” id. ¶ 4(c)(i). The measures required the screening of all his outgoing and incoming non-legal mail, id. ¶ 5, and prohibited him from “talk[ing] with, or otherwise communicat [ing] with, any representative of the news media,” including “through [his] attorney(s)/staff, or otherwise,” id. ¶ 8. The measures also provided for the monitoring of all non-legal visits. Id. ¶ 6. On the condition that his attorneys would not divulge any information to third parties, Abdel Rahman was permitted to communicate with his legal team by telephone, id. ¶¶ 4(a) & 4(d), mail, id. ¶ 5(a), and in person, id. ¶ 6, with fewer restrictions than with other persons. Members of this legal team included lawyers Ramsey Clark, Abdeen Jabara, Lawrence Schilling, and defendant Lynne Stewart.

Stewart repeatedly executed such statements. On May 1, 1998, she signed a document entitled “Attorney Affirmation,” in which she affirmed, under penalty of perjury, the truth of specified statements regarding the then-applicable SAMs: that she had read the May 11, 1998, version of the SAMs; that she “underst[ood] the restrictions contained in that document and agree[d] to abide by its terms”; that during her visits to Abdel Rahman she would “employ only cleared translators/interpreters*103 and [would] not leave [any] translator/interpreter alone with inmate Abdel Rahman”; and that she would “only be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters.” Affirmation of Lynne Stewart, May 1, 1998. Stewart also affirmed that neither she nor any member of her office would “forward any mail received from inmate Abdel Rahman to a third person” nor would she “use [her] meetings, correspondence or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman.” Id. On May 16, 2000, and again on May 7, 2001, Stewart signed similar affirmations under penalty of perjury, again affirming that she had read the most recent versions of the SAMs, and that she would not use her contact with Abdel Rahman to pass messages between him and third parties, including members of the media. Affirmation of Lynne Stewart, May 16, 2000; Affirmation of Lynne Stewart, May 7, 2001.

Defendant Mohammed Yousry, a middle-aged New York University graduate student who served as one of the legal team's translators had also been, in that capacity, a member of Abdel Rahman's trial team. As a translator, Yousry was permitted to read to Abdel Rahman, who is blind, and to take dictation from him.

Various members of the team, including Stewart and Yousry, also maintained contact with defendant Ahmed Abdel Sattar, who had served as a paralegal during Abdel Rahman's trial. The evidence established that Sattar was in continual contact with various members of al-Gama'a abroad. See, e.g., Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i Ahmad Taha Musa, May 9, 2000.

The Visits to Abdel Rahman
Sometime in 1997, more than three years after Abdel Rahman was taken into federal custody, a faction of al-Gama'a declared a unilateral “cease-fire,” i.e., a halting of violent operations, in Egypt. When the cease-fire was first announced, Abdel Rahman was understood to support it.

In November 1997, despite the cease-fire, a group associated with al-Gama'a attacked, killed, and mutilated the bodies of more than sixty tourists, guides, and guards at the Hatshepsut Temple in Luxor, Egypt. Rifa'i Taha Musa (“Taha”)-a military leader of al-Gama'a, a follower of Abdel Rahman, and an unindicted co-conspirator herein-was involved in the incident.FN4 Alaa Abdul Raziq Atia (“Atia”), later a leader of al-Gama'a's military wing in Egypt, was also involved in the killings. Al-Gama'a later claimed responsibility for the attack and demanded Abdel Rahman's release from prison in the United States.

In January 1998, Abdel Rahman was assigned by the Bureau of Prisons to the Federal Medical Center in Rochester, Minnesota (“FMC Rochester”). In March 1999, Stewart and Yousry visited him there. Prior to the visit, Stewart signed and delivered to the United States Attorney's Office for the Southern District of New York a document in which she affirmed, under penalty of perjury, that she would abide by the SAMs imposed by the Bureau of Prisons on Abdel Rahman.

At about this time, defendant Sattar was in contact with members of al-Gama'a, who were divided over their support for what remained of the cease-fire. Pro-cease-fire and anti-cease-fire factions developed, and members of the organization wanted Abdel Rahman to take a position on the matter. *104 To that end, several wrote messages addressed to Abdel Rahman, which they sent to Sattar for delivery to Abdel Rahman. Sattar gave the messages to Stewart and Yousry, who surreptitiously brought the messages with them to Abdel Rahman during a subsequent visit in May 2000.

Yousry read the messages to Abdel Rahman during the visit, and Abdel Rahman dictated to Yousry responses to some of them. Yousry and Stewart then smuggled the responses out of FMC Rochester among their legal papers, and sent them to Sattar. As directed by Abdel Rahman, Sattar informed various members of al-Gama'a that Abdel Rahman was willing to reconsider the effectiveness of the cease-fire and had rejected the associated idea that al-Gama'a should form a political party in Egypt.

News of Abdel Rahman's purported position spread. But some members of the media in the Middle East expressed skepticism about the veracity of Sattar's representations, questioning whether they in fact came from Abdel Rahman or whether Sattar had fabricated them himself. To refute those reports, Sattar and Yousry asked one of Abdel Rahman's lawyers, former United States Attorney General Ramsey Clark, to tell a reporter for an Arabic-language newspaper that Abdel Rahman opposed al-Gama'a's formation of a political party. Clark, they thought, would be perceived as more authoritative than Sattar. Clark eventually agreed to talk to the reporter. He told the reporter that “[t]he Sheikh has said he believes that the formation of a new political party to engage in politics in Egypt at this time is ... not correct and should not be done.” Transcript of Conversation between Ahmed Abdel Sattar, Mohammed Yousry, Ramsey Clark, and Muhammad Al-Shafi'i, Nov. 5, 1999, at 15.

In September 1999, Farid Kidwani, the then-leader of al-Gama'a's military wing, was killed along with three other members of the group in a shootout with Egyptian police. Kidwani's death precipitated further tension and debate within al-Gama'a regarding the advisability and efficacy of the cease-fire.

Taha sent another message to Sattar to be relayed to Abdel Rahman urging Abdel Rahman to support the termination of the cease-fire and noting that Taha and his associates needed a “powerful word” from Abdel Rahman to achieve this goal. Taha told Sattar that such support from Abdel Rahman would “strengthen me among the brothers.” Sattar agreed to send the message to Abdel Rahman and prepared a letter to Abdel Rahman for that purpose. In mid-September 1999, Clark and Yousry surreptitiously took the letter, along with newspaper articles relating to the killing of Kidwani in Egypt, with them during a visit to Abdel Rahman in FMC Rochester. Yousry read the letter and newspaper clippings aloud to Abdel Rahman. From these documents, Abdel Rahman first learned of Kidwani's death.

Abdel Rahman dictated a letter to Yousry in response: "To those against whom war is made, permission is given to fight, because they are wronged (oppressed)-and verily God is most powerful for their aid.... The latest thing published in the newspapers was about the Egyptian regime's killing of four members of the Group. This is ... enough proof that the Egyptian regime does not have the intention to interact with this peaceful Initiative [i.e., the cease-fire] which aims at unification. I therefore demand that my brothers, the sons of [al-Gama'a] do a comprehensive review of the Initiative and its results. I also demand that they consider themselves absolved from it." Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i Ahmad Taha Musa, Sep. 20, 1999, at 6-7 (parenthetical in original). Sattar expected Clark to make a public statement to similar effect, but Clark declined to do so.

On February 18 and 19, 2000, Yousry and Abdeen Jabara, an Arabic-speaking lawyer and member of Abdel Rahman's legal team, visited Abdel Rahman at FMC Rochester. They brought with them another letter which included another message from Taha, again asking for Abdel Rahman's support for ending the cease-fire. But Jabara would not permit Abdel Rahman to dictate a letter to Yousry in response. And, notwithstanding pressure from Sattar and Taha, Jabara, like Clark before him, refused to issue any public statement regarding Abdel Rahman's position on the matter.

On May 16, 2000, defendant Stewart signed another affirmation that she and her staff would abide by the SAMs. She did not submit that affirmation to the United States Attorney's Office until May 26.

On May 18, 2000, Stewart met with Sattar, who gave her more letters for Abdel Rahman, including another message from Taha yet again seeking Abdel Rahman's approval of an end to the cease-fire. Taha asked Abdel Rahman to take a “more forceful position” regarding the end of the cease-fire and to “dictate some points we can announce in a press conference with Lynne.” Transcript of Second Audiovisual Recording involving Omar Abdel Rahman, Mohammed Yousry, Lynne Stewart, and others, May 19, 2000, (“Video Tr. May 19, 2000, Tape 2”), at 36.

On May 19 and 20, 2000, Stewart and Yousry visited Abdel Rahman, taking Sattar's most recent letters with them, including the letter containing the message from Taha. Unbeknownst to them, the government, pursuant to a warrant, videotaped the meetings. Yousry told Abdel Rahman that Abu Sayyaf-an Islamic terrorist group in the Philippines-had taken hostages to be used in bargaining for the release of Abdel Rahman and others. When Yousry explained to Stewart that he was “telling the Sheikh about the Abu Sayyaf group in the Philippines” and how “they took hostages,” Stewart replied, “Good for them.” Transcript of First Audiovisual Recording involving Omar Abdel Rahman, Mohammed Yousry, and Lynne Stewart, May 19, 2000, at 27.

From the beginning of the visit, Stewart was aware of the prison guards' presence. For example, she asked Yousry, “Do they usually sit like this and watch us?” Id. at 10. And during this meeting, Stewart and Yousry took overt steps to ensure that the nature of their communication with Abdel Rahman would be concealed from the prison guards. As she suggested to Yousry, they “should give them [i.e., the guards] something to watch.” Id. at 11. When the guards were standing close to the window of the conference room in which Abdel Rahman, Stewart, and Yousry, were meeting Yousry told Stewart to “look at me and talk a little bit because they are watching us closely.” Id. at 51. While Yousry read the message to Abdel Rahman, Stewart uttered a meaningless series of phrases to Yousry so that it would appear to an observer as though she was taking part in a three-way conversation: “I am talking to you about ... him going to have a, uh, chocolate eh ... heart attack here.... Why don't you stop a minute now. And (UI) say to him that, you know, ‘You understood what we are saying, (UI).’ ” Id. As Stewart spoke, Yousry said to Abdel Rahman, “I don't know, Sir, they are standing very close by the glass.... Lynne says, (UI) when they look, you look at me a little, talk, then look at the Sheikh.” Id.

YOUSRY: ... Lynne, I think you should talk to him because they are looking at me.

STEWART: (UI) there (UI), they, uh, (UI) ... [she taps Yousry's pad with her pen] uhm, if he finds out what this is, then we're ... [Laughs.]

YOUSRY: [Laughs] In trouble.

STEWART: [Laughing] Yeah, that's right.

Video Tr. May 19, 2000, Tape 2, at 29 (brackets in original).

Stewart and Yousry also took evasive action when a guard appeared to take interest in their conversation. At one point, while Yousry was conversing with Abdel Rahman, Stewart touched Yousry's hand and said “Why don't you stop there and we'll talk a minute urn, the, uh.... Ahmed's youngest son needs glasses, did you know that?” Id. at 30. Yousry then explained to Abdel Rahman, “Lynne says, stop a little because they are by the glass.” Id. Not long afterwards, Stewart tapped with the pen on the paper in front of Yousry and told him to “continue reading this ‘cause this is setting up the organizational system around his conditions.’ ” Id. Yousry continued reading. Stewart then made a series of statements unrelated to the substance of the conversation between Yousry and Abdel Rahman. Yousry kept Abdel Rahman informed of what Yousry and Stewart were doing, noting that “Lynne continues to eh, she's watching them, she's watching them,” to which Abdel Rahman replied, “[v]ery good, very good.” Id. at 33. After Yousry finished reading Taha's message to Abdel Rahman, he returned it to a notebook that he had brought with him and with which he left.

On the second day of the same visit, Abdel Rahman dictated to Yousry, among other things, a letter to an al-Gama'a lawyer who favored the cease-fire, asking him to allow others in al-Gama'a to criticize it, and another to Taha asking him to “escalate the language” of criticism of the cease-fire. Video Tr. May 20, 2000, Tape 2, at 32.

Meanwhile, Stewart and Yousry continued to engage in what Stewart later called “[c]overing noises,” Video Tr. July 13, 2001, Tape 2, at 12, and other tactics designed to obscure the nature of what they were doing. After one such incident, Yousry explained to Abdel Rahman, “[S]he just has to say that in order to break the ... The people are looking.” Video Tr. May 20, 2000, Tape 1, at 14. Stewart told Yousry, “I am making allowances for them looking in at us and seeing me never speaking and writing away here while you talk Arabic.” Id. at 17. She then directed *107 Yousry to “talk back to me now, because otherwise it doesn't make any sense.... So say something in English....” Id. As Yousry explained to Abdel Rahman, “We are now acting, I talk to her in Arabic, and she responds in English, and they don't understand what is going on.” Video Tr. May 20, 2000, Tape 2, at 38.

At the end of the visit, Stewart and Yousry took the Yousry-transcribed responses from Abdel Rahman with them from the prison, and later gave them to Sattar. Sattar then passed them along to Taha and another member of al-Gama'a. Sattar also spoke to various members of al-Gama'a, informing them that Abdel Rahman would have “no objection” to a return to violence. Transcript of Audio Recording of Ahmed Abdel Sattar, Rifa'i Ahmad Taha Musa, and Salah Hashim, May 29, 2000, at 3.

At about this time, Sattar told members of al-Gama'a that Stewart would be making a public statement about Abdel Rahman's views on the cease-fire. Sattar and Stewart first discussed what Stewart would say to the press. Then, on June 13, 2000, Sattar and Stewart spoke to Esmat Salaheddin, a Reuters reporter based in Cairo. Stewart told Salaheddin that Abdel Rahman “is withdrawing his support for the ceasefire that currently exists.” Trial Transcript (“Trial Tr.”) at 5574, 5617, testimony of Salaheddin. She explained that Abdel Rahman had made the statement from prison two weeks before.

The next day, other Middle Eastern press outlets carried the news that Abdel Rahman had withdrawn his support for the cease-fire. Many noted that for the cease-fire to hold, Abdel Rahman's support was essential.

On June 20, 2000, Stewart participated in a telephone conference with Abdel Rahman. She then sent another statement on Abdel Rahman's behalf via facsimile to Salaheddin, the Reuters reporter in Cairo. The telecopy said, “Everything said in the previous statements is correct” and quoted Abdel Rahman as saying, “I do withdraw my support to the [cease-fire] initiative.” Statement for Release, Abdel Rahman, June 20, 2000. Following Stewart's statements on Abdel Rahman's behalf, several members of al-Gama'a began preparations to engage anew in acts of violence.

On October 4, 2000, Sattar and Taha completed a fatwa on Abdel Rahman's behalf, imitating his style, “mandating the killing of the Israelis everywhere” and “the killing [of] the Jews wherever they are (UI) and wherever they are found.” Transcript of Audio Recording of Ahmed Abdel Sattar and Yassir Al-Sirri Oct. 4, 2000, (“Audio Tr. Oct. 4”) at 13-16. Sattar sent the fatwa to, among others, Atia, who had in the meantime become the military leader of al-Gama'a. Upon receiving the message, Atia began preparing for an attack. But, on October 19, 2000, before Atia could act, the Egyptian authorities raided his hideout, killing him and killing or arresting other al-Gama'a members.

On July 13 and 14, 2001, Stewart again paid a visit to Abdel Rahman at FMC Rochester, having signed a revised affirmation agreeing to abide by the SAMs and having sent the affirmation by facsimile to the United States Attorney's Office for the Southern District of New York on May 7, 2001. Stewart again, with Yousry's assistance and contrary to provisions of the SAMs, surreptitiously brought messages to and from Abdel Rahman.

Posted by: Larry Rosenthal | Jul 17, 2010 5:09:15 PM

Gloco:
As the deterioration of justice and due process in our country continues, you may have to follow your own advice to stay out of the gulag.

Posted by: Johnmichael | Jul 18, 2010 7:10:03 AM

Shows how vindictive, petty and mean the federal judicial system is. Can do anything if they simply justify it with the word, "security". No longer public servants, but similar to the beaurocrats of the Soviet Union. We're here to serve the overpaid, overprivileged parasites of the federal criminal "justice" system.